Employment discrimination on the basis of sexual orientation or gender identity is prohibited in the United States as per the United States Supreme Court ruling in Bostock v. Clayton County on June 15, 2020. A number of cities and counties in the United States have implemented non-discrimination laws for sexual orientation and/or gender identity. As of October 25, 2017, at least 400 cities and counties prohibit discrimination on the basis of sexual orientation and gender identity for both public and private employees. Most but not all of these cities and counties are located in states that have a statewide non-discrimination law for sexual orientation and/or gender identity.
Localities in bold are jurisdictions that prohibit discrimination in the public and private sector. Localities in italics are jurisdictions that prohibit discrimination in public employment only.
Additionally, the US Supreme Courth held in Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that sexual orientation and gender identity are included under "sex" of Title VII of the Civil Rights Act of 1964. This affirms rulings in the Second, the Sixth, the Seventh, and the Eleventh circuit courts. Sexual orientation has been established as a protected class in Indiana and, similarly, gender identity in Alabama, Florida, Georgia, Kentucky, Michigan, Ohio and Tennessee, requiring heightened scrutiny in discrimination disputes. None of these states has enacted specific legislation addressing discrimination on account of sexual orientation and gender identity.
Circuit Court of Appeals rulings Sexual orientation Hively v. Ivy Tech Community College In 2013, Kim Hively filed a lawsuit against the Ivy Tech Community College of Indiana in South Bend, arguing that she was denied promotions and let go from her job because of her sexual orientation. The United States Court of Appeals for the Seventh Circuit heard oral arguments in the case in November 2016 with discussion focusing on the meaning of the word "sex" in Title VII of the Civil Rights Act, which bans workplace discrimination based on race, religion, national origin or sex. On April 4, 2017, the Court of Appeals ruled in an 8–3 vote that the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation. Ivy Tech subsequently stated they would not appeal the ruling to the Supreme Court. This ruling creates a precedent for lower courts in Illinois, Indiana and Wisconsin to follow, meaning employment discrimination based on sexual orientation is now banned in these states (Illinois and Wisconsin already had laws prohibiting such discrimination). Human Rights Campaign hailed the ruling, saying: "Today's ruling is a monumental victory for fairness in the workplace, and for the dignity of lesbian, gay and bisexual Americans who may live in fear of losing their job based on whom they love."Ruling Affirms Civil Rights Laws Protect Employees from Discrimination Based on Sexual Orientation Human Rights Campaign
Zarda v. Altitude Express, Inc. On February 26, 2018, the United States Court of Appeals for the Second Circuit (covering Connecticut, New York and Vermont) ruled that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation employment discrimination under the category of sex. Donald Zarda, who worked for Altitude Express as a skydiving instructor in New York, is gay. To avoid any discomfort his female students might feel being strapped to an unfamiliar man, Zarda would often disclose he was gay. Before one particular jump with a female student, Zarda told her that he was gay. After the skydive, the student told her boyfriend that Zarda had inappropriately touched her and disclosed his sexual orientation to excuse his behavior. The woman's boyfriend told Zarda's boss, who fired Zarda shortly thereafter. Zarda denied touching the student inappropriately and believed that he was fired solely because of his reference to his sexual orientation. The Court ruled, 10–3, that: "Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected." Donald Zarda died in 2014 in a base jumping accident and the case was continued by his family. The ruling did not focus on whether the merits of his case specifically, but whether sexual orientation was protected as a function of sex, and in effect protected gay workers under the Civil Rights Act. Prior to the ruling, in July 2017, the Justice Department under President Trump had unexpectedly interceded in the case, arguing in filed a friend of the court brief that Title VII of the 1964 Civil Rights Act did not explicitly cover sexual orientation discrimination in the workplace. This stance put the DOJ at odds with the Equal Employment Opportunity Commission.
Gender identity Glenn v. Brumby
In December 2011, the United States Court of Appeals for the Eleventh Circuit (covering Alabama, Florida and Georgia) ruled that Vandy Beth Glenn, a transgender woman living in Georgia, had been unfairly terminated from her job at the Georgia Legislative Assembly due to her transgender status. Relying on Price Waterhouse v. Hopkins and other Title VII precedent, the Court concluded that the plaintiff was discriminated against based on her sex because she was transitioning from male to female. The Court stated that a person is considered transgender "precisely because of the perception that his or her behavior transgresses gender stereotypes." As a result, there is "congruence" between discriminating against transgender individuals and discrimination on the basis of "gender-based behavioral norms." "Because everyone is protected against discrimination based on sex stereotypes, such protections cannot be denied to transgender individuals", the Court ruled.Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII
EEOC v. R.G. & G.R. Harris Funeral Homes On March 7, 2018, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) ruled that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against transgender people. It also ruled that employers may not use the Religious Freedom Restoration Act to justify discrimination against LGBT people. Aimee Stephens, a transgender woman, began working for a funeral home and presented as male. In 2013, she told her boss that she had a gender identity disorder and planned to transition. She was promptly fired by her boss who said that "gender transition violat[es] God's commands because a person's sex is an immutable God-given fit."
Case law Case law has been established in the following cases.
Schwenk v. Hartford On February 29, 2000, citing Title VII case law, the United States Court of Appeals for the Ninth Circuit, which covers Alaska, Arizona, California, Idaho, Guam, Hawaii, Montana, Nevada, the Northern Mariana Islands, Oregon and Washington, ruled that a transgender woman serving a prison sentence appropriately stated a claim of sex discrimination under the Gender Motivated Violence Act when filing a complaint about an assault from a prison guard.SCHWENK v. HARTFORDEEOC's Inclusion of Sexual Orientation and Gender Identity Under Title VII's Prohibition of Sex Discrimination and Possible Implications for Private Employers
Rosa v. Parks W. Bank & Trust Co On June 9, 2000, the United States Court of Appeals for the First Circuit (covering Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) ruled that Lucas Rosa, a transgender woman, could claim sex discrimination under the Equal Credit Opportunity Act when a bank denied her a loan application because of the way she was dressed. The ruling cited Title VII case law.United States Court of Appeals, First Circuit.
Tovar v. Essentia Health On May 24, 2017, the United States Court of Appeals for the Eighth Circuit (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) ruled in Tovar v. Essentia Health, the case of a nurse practitioner in Minnesota claiming discrimination based on gender identity because her insurance company would not cover her transgender child under her health insurance. The court ruled that Tovar lacked standing to pursue the claims of discrimination because she could not file suit on behalf of her child. However, in its ruling the 8th Circuit wrote that "because the district court concluded that Tovar is not within the class of plaintiffs for whom Title VII and the MHRA create causes of action, we assume for purposes of this appeal that the prohibition of sex-based discrimination under Title VII and the MHRA encompasses protection for transgender individuals".
Wittmer v. Phillips 66 Company In April 2018, the U.S. District Court for the Southern District of Texas ruled that although a woman hadn't proven she had been discriminated against for being transgender by the company Phillips 66, if that had been proven, then the woman would have "had a case" under Title VII of the Civil Rights Act of 1964. The judge, who had been appointed by President George H. W. Bush in 1992, cited other recent cases as shaping the final decision.
States Alabama
There is no legal prohibition of discrimination on the basis of sexual orientation and gender identity for both public and private employees on a statewide level. Sexual orientation and gender identity Cities: Birmingham, Huntsville, Montevallo,Montevallo, Alabama OKs LGBT Protections and Tuscaloosa.MEI 2017: See Your City’s Score Sexual orientation only City: Montgomery.
Alaska
Statewide prohibition of discrimination on the basis of sexual orientation for state employees by executive order. Sexual orientation and gender identity Consolidated city-boroughs: Anchorage, Juneau, and Sitka.
Arizona
Statewide prohibition of discrimination on the basis of both sexual orientation and gender identity for state employees and contractors by an executive order. Sexual orientation and gender identity Cities: Chandler, Flagstaff, Gilbert, Glendale,Municipal Equality Index 2015 Mesa,Municipal Equality Index 2016 Phoenix, Scottsdale, Sedona, Tempe, Tucson, and Winslow.
Arkansas
There is no legal prohibition of discrimination on the basis of sexual orientation and gender identity for both public and private employees on a statewide level. The Arkansas Intrastate Commerce Improvement Act blocks any local unit of government from barring discrimination on any basis not already covered by state law to private businesses. Sexual orientation and gender identity County: Pulaski. Cities: Conway, Eureka Springs, Fayetteville, Hot Springs, Little Rock, and North Little Rock. Sexual orientation only City: Marvell,Marvell passes non-discrimination ordinance and Springdale.
California
Statewide prohibition of discrimination on the basis of sexual orientation and gender identity for both public and private employees by state statute.
Colorado
Statewide prohibition of discrimination on the basis of sexual orientation and gender identity for both public and private employees by state statute.
Connecticut
Statewide prohibition of discrimination on the basis of sexual orientation and gender identity for both public and private employees by state statute.
Delaware
Statewide prohibition of discrimination on the basis of sexual orientation and gender identity for both public and private employees by state statute.
Florida
There is no legal prohibition of discrimination on the basis of sexual orientation and gender identity for both public and private employees on a statewide level. Florida cities banning discrimination on account of sexual orientation and gender identity in private employment which are located in counties with similar protections are not listed below. Such cities include Miami, Fort Lauderdale, Tampa, Tallahassee, etc.